Almost No Choice: Homelessness and the Law

“Homeless people get almost no choice. Shelter system, sleep on the sidewalk, hide a tent.”[1]

 

Anti-camping ordinances primarily affect the homeless. Such laws implicate a fundamental civil liberty: the right to exist. There is a pressing need for scholarship concerning these statutes, particularly scholarship that addresses the increasing rate at which cities are banning camping and lodging, or even sitting and standing, by homeless people. A wealth of scholarship has challenged the constitutionality of these statutes as they were written (see incisive considerations of this issue in prior volumes of CR-CL here and here.) New examinations of this topic should challenge the primary framework through which courts have understood homeless individuals’ lived experiences.

Courts have split on anti-camping ordinances, finding that they are unenforceable when no shelter space is available, upholding them, or rejecting them outright.

In Jones v. City of Los Angeles, a California court found that the anti-camping ordinances were unconstitutional because forbidding sleeping outside while shelter space was unavailable amounted to a criminalization of status.[2] Thus, in many places, the ban on sleeping outside is enforceable only on days when no shelter is available. When being outside is illegal under specific circumstances, which one cannot know in advance, homeless individuals are hard pressed to know when they are in violation of the law, and police are hard pressed to know when they may legally enforce it.

We must investigate whether the courts correctly characterize realities facing homeless people, particularly regarding “choice.”[3] At issue in Jones was whether or not individuals had the chance to avail themselves of a shelter before resorting to the street. The court prefaced its discussion by asking whether homeless individuals truly had no alternative to the street and found “the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times.” Thus the court concluded “criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless” violated plaintiffs’ Eighth Amendment rights.[4] Under the Jones analysis, the officer who approaches a homeless person must know that this person does not have access to shelter and shelters must have provided accurate vacancy information. This high bar for information sharing renders the legal portrait of homelessness far different from reality.

Courts also fail to recognize that some individuals sleep intermittently with friends or family and some sleep on the street “voluntarily” because alternatives (such as shelters) are inaccessible to them. In Jones, the court considered whether shelters were accessible or adequately safe and appropriate, but their standard of analysis failed to consider important and rational reasons people avoid shelters, such as trauma, mental health concerns, the threat of theft, safety, hygiene, and compromised immune systems.[5] Courts that have considered the possibility that disabilities might remove the apparent “choice” of an “available” shelter bed have crafted an awkward legal framework: people have free will to choose an alternative to the street, or they have no choice at all.

In Jones, and other cases, the court dodges a more fundamental question, which deserves attention from courts and researchers: What do we, as a legal community, expect homeless individuals to tolerate? On what basis do we demand that homeless individuals accept an offer of “help” to remove themselves from the commons? Is that basis grounded in a conception of freedom and civil rights that we find acceptable? All in all, many people are homeless temporarily, with housing available to them at some points and not at others. The courts’ requirement of homelessness, that an individual have no “other choice,” fails to describe the lives of most homeless people.[6] Both “status” and “choice” are ill-fitting legal concepts for the experience of homelessness.[7]

Instead of demanding that cities to provide shelter in order to continue to enforce anti-camping ordinances, courts should take responsibility for that more fundamental question of whether current case law rests upon fundamentally flawed assumptions.

 

 

[1] Mike Zint, The Real Plight of the Homeless, People’s Tribune (April, 2017), http://peoplestribune.org/pt-news/2017/04/real-plight-homeless-told-homeless/.

[2] See 444 F.3d 1120 (finding that in the absence of available shelter, criminalizing “life-sustaining” conduct in public is in violation of Eight Amendment rights); Bell v. City of Boise 834 F.Supp.2d 1103 (finding that criminalizing sleeping in public places is illegal because it punishes people for being homeless, particularly when shelter is not available), Cobine v. City of Eureka, No. C 16-02239 JSW, 2016 WL 1730084 (N.D.Cal., May 5, 2016) (finding an anti-camping ordinance illegal in the absence of available shelter), City of North Bend v. Bradshaw, Case No. Yl 32426A (North Bend Muni. Ct. Jan. 13, 2015) (finding that enforcement of the camping ban violated the plaintiff’s 8th Amendment rights). But see, Tobe v. Santa Ana, 892 P.2d 1145 (Cal. 2015) (upholding a city-wide anti-camping ban because it penalized conduct not status but noting that the outcome might differ in an “as-applied” rather than prima facie challenge).

[3] Tanene Allison, Confronting the Myth of Choice: Homelessness and Jones v. City of Los Angeles, 42 Harv. C.R.-C.L. L. Rev., 254 (2007) (positing that there is a “serious gap between the policies created to deal with homelessness and . . . the factors that cause it and the needs it creates”).

[4] Jones v. City of Los Angeles at 1132.

[5] Allison, 254.

[6] National Coalition for the Homeless, How Many People Experience Homelessness (2009), http://www.nationalhomeless.org/factsheets/How_Many.html.

[7] See Joyce, 846 F. Supp. at 867 (finding that “to argue that homelessness is a status and not a condition…is to deny the efficacy of acts of social intervention to change the condition of those currently homeless”).

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